Jones v. Cook — 18 N.Y. Sup. Ct. 230

Majority

p. 230

ZENAS H. JONES, Respondent, v. DANIEL D. COOK, Appellant.

Headnote

Appeal from a judgment of a justice of the peace — notice under Code, § 371 — what requw'ed — Motion — what relief may he granted on — Costs.

Where a party appealing from a judgment of a justice of the peace stated in his notice, that the judgment should have been more favorable to him in five different sums therein specified, held, that this was not a sufficient compliance with section 371 of the Code, requiring that if the appellant claims that the amount of the judgment is less favorable to him than it should have been, he should specify what should have been its amount.

Bigshy v. Warden ( 62 N. Y., 27 ) distinguished.

Where a motion is noticed to set aside a taxation of costs, the court may, when both x>arties appear upon the hearing, direct not only that the taxation be set aside, but also that any judgment for said costs entered thereon be vacated. Upon such hearing the court may allow costs to the successful party, even though they be not asked for in the notice of motion.

Appeal from an order of tbe Allegany County Court, setting aside a taxation of costs, and tbe judgment for said costs, in favor of tbe defendant, and ordering costs in favor of tbe plaintiff.

Tbe defendant appealed to tbe County Court from a judgment rendered by a justice of tbe peace for $200, stating in bis notice, as one of tbe grounds of appeal, that tbe judgment should bave been more favorable to bim in that it should bave been for five different smaller amounts specified. Tbe plaintiff made no offer to modify tbe judgment. In tbe County Court tbe plaintiff recovered $100 damages. Tbe clerk taxed costs in favor of tbe defendant, and tbe County Court, on motion of tbe plaintiff, set aside tbe taxation and tbe judgment for costs, and ordered costs in favor of tbe plaintiff, which is tbe order now appealed from..

Rufus Scott, for tbe appellant.

Jones <& Sponger, for tbe respondent.

Section 371 of tbe Code requires that if tbe appellant claims that tbe amount of tbe judgment is less favorable to bim than it should bave been, be shall state what should bave been its amount. It

p. 231

has been held repeatedly, in this department, that a specification in the notice of appeal that the judgment should have been more favorable in two or more sums of different amounts, is not a compliance with that requirement of the statute, and is of no effect. (Putnam v. Heath, 41 How., 262 [1870] ; Wadley v. Davis, 43 id., 82 [1872] ; Murphy v. Simmons, 3 T. & C., 794 [1874].)

The appellant’s counsel claims, however, that the decisions above referred to were overruled by the Court of Appeals in Bigsby v. Warden ( 62 N. Y., 27 ). That is a misapprehension. The point there decided was that a statement by the appellant, in his notice of appeal, that the judgment “ should not have been for a larger amount ” than a certain sum specified, is a sufficient compliance with the requirement that he shall state “what should have been its amount.” Only one amount was specified in the notice of appeal in that case, and the question here involved did not arise. The cases in this department above cited have not been overruled, and they are decisive of the question in the present case.

The appellant’s counsel insists that the order of the County Court should be reversed, because it vacated not only the taxation of costs in favor of the defendant, but also “ any judgment for said costs entered thereon,” which latter relief was not ashed for in the notice of motion; also, because it gave costs of the motion which were not ashed for in the notice. The cases of Northrop v. VanDusen ( 5 How., 134 ) and Saratoga Railroad Company v. McCoy (9 id., 341) cited by appellant’s counsel, were eases of default. "Where an order is tahen by default the party obtaining it can only tahe what he ashs for in his notice. Even where both parties appear no relief will be granted, as a usual rule, except as specifically demanded, where there is no prayer for general relief. Especially, where such additional relief is distinct from and independent of that specified in the notice of motion. Thus, in Alexander v. Esten, administrator ( 1 Cai., 152 ), the object specified in the notice being to set aside an execution, the court would not allow it to be extended to the judgment; and in Smith v. Spaulding and others ( 30 How., 339 ), the Superior Court of New Yorh held that a motion to vacate an order of arrest did not embrace a motion to reduce the bail, although general relief was ashed for. Here, however, the setting aside of “ any judgment for the costs ” is incidental to the vacating of the taxation of the costs

p. 232

themselves, and is necessary to make that relief effectual. It is suggested that the affidavits did not show that a judgment had been entered. If none was entered, the only consequence is that that portion of the order is useless, and does no harm. As to costs, the County Court undoubtedly might have refused them, on the ground that the notice of motion did not ask for costs. But both parties having appeared, and the motion having been heard on its merits, the court could allow costs in its discretion. (Code, § 315.)

The order should be affirmed, with ten dollars costs of appeal and disbursements.

Present — Mullin, P. J., Talcott and Smith, JJ.

Order of County Court affirmed, with ten dollars costs of appeal and disbursements.